The Supreme Court ruled this week in DA's Office v. Osborne that a state prisoner has no Fourteenth Amendment Due Process right to access the state's evidence for DNA testing, even where all the parties agree that the testing could conclusively prove his guilt or innocence and even where he offered to pay for it. The 5-4 majority opinion, authored by Chief Justice Roberts, said that neither procedural due process nor substantive due process compelled access.

In doing so, the opinion seemed to turn the Court's method of dealing with new claimed, substantive due process rights on its head. In particular, the Court exactly reversed the role that state legislative judgments play in the Court's recognition of new rights. Osborne's claimed right did not bubble up from an emerging consensus among the states; instead, it devolved down.

The Court's ruling turned turned in large part on the Court's deference to state legislatures in working these issues out. Chief Justice Roberts wrote:

The dilemma is how to harness DNA's power to prove innocence without unnecessarily overthrowing the established system of criminal justice.

That task belongs primarily to the legislature.

Slip Op. at 8. And according to the Court, they're doing it:

Forty-six States have already enacted statutes dealing specifically with access to DNA evidence.

Slip Op. at 8-9. The Court shouldn't interfere with these "serious, thoughtful examinations," by establishing a new right, wrote the Chief Justice, citing Washington v. Glucksberg.

But Washington v. Glucksberg used the emerging state consensus in exactly the opposite way. In that case, the Court refused to recognize a new claimed, substantive due process "right to assisted suicide" in large part because the states had almost universally criminalized assisted suicide. Chief Justice Rehnquist wrote,

We begin, as we do in all due-process cases, by examining our Nation's history, legal traditions, and practices. In almost every State--indeed, in almost every western democracy--it is a crime to assist a suicide.

In that case, the state consensus against the claimed fundamental right drove the Court to deny the fundamental right. In Osborne, the state consensus in favor of Osborne's claimed fundamental right also drove the Court to deny the fundamental right. The only thing the cases seem to have in common is the denial of the claimed right.

(The Court in Osborne also looked to whether the claimed right was deeply rooted in our history and traditions--an approach in perfect harmony with Glucksberg. The Osborne court found that the claimed right at its most specific level of description (a "careful description" of the right, in Glucksberg's language) did not meet this test. Justice Stevens argued in dissent that a more general description of the claimed right--the interest in the "fundamental liberty of freedom from physical restraint," e.g.--certainly would meet the test.)

Between Glucksberg and Osborne, those seeking judicial recognition of "new" rights are in a tough spot with regard to the states. An emerging state consensus against a right (as in Glucksberg) cuts strongly against judicial recognition of the new right. But on the other hand, an emerging state consensus in favor of a right (as in Osborne) also cuts strongly against judicial recognition of the new right.

It seems that whatever the states are doing with regard to a new or emerging right, this approach would simply allow them to keep doing it, without judicial interference and recognition of that right. Stated only slightly differently: States are (and should be) "laboratories of democracy" not only in how they protect interests, but also in how they don't protect them.

This approach was also on display in Judge Easterbrook's recent decision for the Seventh Circuit panel on incorporation of the Second Amendment. (I posted most recently here.) He wrote,

But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. . . . Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.